What jurors really think about your employment case.

Byline: Dawn R. Solowey and Lynn A. Kappelman

The first of two parts. Part 2 can be found here.

As trial lawyers representing employers, we have learned a great deal over time about how jurors tend to think about employment cases. Yet watching a jury deliberate during a mock trial behind a one-way mirror is always a wake-up call. It provides an unvarnished look at how jurors actually think and talk about employment claims behind closed doors.

Recently, we conducted a mock jury session on behalf of a client in an employment discrimination and retaliation case. In the day-long exercise, three separate mock juries heard the exact same summaries of both parties' evidence, including video excerpts of testimony from key witnesses, and then deliberated and reached a verdict.

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Watching a jury deliberate during a mock trial behind a one-way mirror provides an unvarnished look at how jurors actually think and talk about employment claims behind closed doors.

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The results, while different in each room, raised many of the same themes that we have seen in other mock jury settings. Below are five key lessons from the mock juries, as well as strategies for how employment counsel can shape a trial narrative in light of jurors' views. Part 2 will look at five additional takeaways from the mock juries.

But he worked there so long! Jurors empathize with long-term employees.

Legally, an at-will employee remains at will no matter how long he has worked for the employer. But juries may not agree.

Many jurors think that long-term employees should get special protection whether there is a law requiring it or not. In the mock deliberations, jurors repeatedly said things like: "But he had been a good employee for a long time." They felt he was owed extra chances to turn around his performance. They wanted the employer to take special care with him.

Because of this potential bias, go ahead and acknowledge a plaintiff's long tenure at the company. Express the employer's appreciation for those years of service. At the same time, explain why, despite that long tenure, the plaintiff's conduct became unacceptable.

Maybe the plaintiff's performance declined over time make that clear. Maybe an egregious instance of misconduct necessitated termination even though it had never happened over the many prior years he had worked for the company explain why.

Emphasize extra chances the employer gave the plaintiff to turn around performance. Highlight the ways the...

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